Monday, August 25, 2014

Judging Similarity (Part 3)

This post is by guest Irina Manta

Now that I have discussed the background and methodology of the studies in “Judging Similarity”, it is time to turn to a fuller discussion of the implications of our results for the third and last part of this post.

We had three key findings:

1) Knowledge of copying significantly raises the similarity rating.

2) Knowledge that a high level of labor went into creating the original work significantly raises the similarity rating.

3) Knowledge that market substitution occurred does not appear to significantly raise the similarity rating.

As discussed in Part 2, we have reason to believe that the first finding is the result of confirmation bias. This finding is troubling in that it suggests that, at the most basic level, decision-makers may be unable to separate the two prongs of the substantial similarity test and that the copying prong (to borrow rhetoric from Barton Beebe’s work on the trademark multi-factor test) is “stampeding” the similarity prong.

Unlike in a trial setting, where the facts in copyright cases greatly differ from one situation to another, our first study enabled us to isolate the copying element. Nothing changed between the two conditions aside from the statement that the creator of the junior work copied from the original. Given our research design and the fact that we purposefully picked work pairings that are the type likely to go to court, there is reason to believe that the powerful effect of the knowledge of copying may sway decisions on infringement at the margin.

The second finding raises its own problems. We believe that knowledge of a high versus low expenditure of labor played a role in two possible ways. First, it might have triggered the intuition that the greater expenditure of labor ought to correlate to a stronger property right or ownership interest. Generally associated with Lockean ideals, this intuition is thought to map onto people’s beliefs about owning the products and fruits of their labor-intensive activities. The association with “stronger protection” for the work may have translated into a looser standard for similarity. Second, the expenditure of labor may not have triggered subjects’ beliefs about the strength of the property right, but instead directly affected their intuitions about the wrongfulness of the copying. Copying is commonly perceived as a form of free riding and is often associated with plagiarism or cheating. It is therefore conceivable that the creator’s expenditure of labor led subjects to view the copying involved as entailing greater (and more morally outrageous) free riding, which they treated as wrongful.

If our interpretation of subjects’ reasoning is correct, it suggests that copyright law and policy have done a poor job of cabining labor-based considerations. In its now notorious decision in Feist Publications, Inc. v. Rural Telephone Services Co., 499 U.S. 340 (1991), the Supreme Court categorically concluded that “sweat of the brow” considerations—i.e., that copyright should be used as a reward for hard work—are largely irrelevant to copyright law, especially in determining whether and how much protection works obtain. While this may be true as a formal matter, our study shows that decision-makers have a tendency to re-introduce these labor-based considerations during their assessments of similarity as part of the copyright infringement analysis. Interestingly, while scholars usually try to adjust copyright law based on utilitarian considerations, subjects were swayed in their similarity ratings at a statistically significant level by labor considerations (finding 2) but not by market substitution ones (finding 3).

Our study suggests that instead of claiming to have labor-based considerations play no part whatsoever in its working, copyright law should do one of two things. First, it could make a more concerted effort to eliminate labor-based considerations from the different elements of the analysis. Alternatively, it could embrace the reality that moral intuitions relating to labor and free riding directly influence the assessment of similarity, which in turn serves as a simple proxy for wrongfulness. I have written previously about how we might work toward the first goal, but much research remains to be done in this area.

Tuesday, August 19, 2014

JOTWELL: Understanding Prophylactic Supreme Court Decisions

William Baude at JOTWELL has a review of my colleague John Stinneford's article, The Illusory Eight Amendment. Baude writes, "It is a rare achievement to write about a case in the constitutional law canon and tell us something we did not know. This is the achievement of John Stinneford's recent article . . . . " Professor Stinneford's article critiques Miranda v. Arizona, and contends, contrary to popular wisdom, that it did not truly create a prophylactic rule to prevent compelled confessions. Indeed, Professor Stinneford notes that "the Supreme Court in Miranda did not particularly care what the term 'compelled' means," and because of the Court's failure to address this issue directly, "many of the practices disliked by the Miranda court are still used today. As long as the police give the requisite warnings and obtain the requisite waiver, they can still keep the defendant alone in a room and question him for hours, using psychological pressure and trickery to induce a confession." Both Stinneford's perceptive article and Baude's review explore the implications of this analysis.

Summary judgment and the infield fly rule

No, not together, sadly.

The final version of An Empirical Analysis of the Infield Fly Rule is now on-line at the Journal of Legal Metrics/Journal of Law (the book will be out in a month or so). The article presents the results of a four-year study of all infield fly calls in Major League Baseball. I am extending the study for the 2014 and 2015 seasons, as well as trying to apply some advanced baseball metrics to measure the effect of the rule (or, more precisely, what the effect might be if we did not have the rule and infielders were free to intentionally not catch the ball in search of cost-benefit advantages).

This essay examines three cases from the Supreme Court’s October Term 2013 that addressed the standards for summary judgment. In one, the Court affirmed summary judgment against a civil rights plaintiff; in two others the Court rejected the grant of summary judgment against civil rights plaintiffs, arguably for the first time in quite awhile, but in procedurally confounding ways. The essay unpacks the substance and procedure of all three decisions, and considers their likely effect and what signals they send to lower courts and litigants about the proper approach to summary judgment.

Wednesday, August 13, 2014

Reviving the Research Canons: What Every Law Prof Needs to Have Read

Mike Madison has a really nice piece out entitled "Lost Classics of Intellectual Property Law." In it, he chides legal scholarship for failing to pay enough attention to older pieces that have come before and have laid the foundation for the discipline. His essay seeks to address this problem by setting out those "classics" that need to read, understood, and cited to provide "better and more consistent acknowledgement of earlier work." The article is actually a compilation of his earlier blog posts, including a 2007 self-described "rant" against the failure of IP scholars to understand the background literature in their field. Talking about presentations at a working-papers conference, Madison said: "By far the biggest flaw in presentations and papers by junior IP scholars (and sometimes by more senior IP scholars) was and is their evident ignorance of earlier work. And not just or even work published within the last year or last five years; I’m thinking of the fact that a lot of foundational work published ten years ago or earlier remains significant today."

The new essay called to mind a project we had at Prawfs eight (!) years ago called the "Research Canons" project. The effort was similar to Madison's -- to compile lists of the foundational works in the legal sub-fields for use by scholars in the area, particularly junior ones. At the completion of our two-month run, thanks to help from a lot of folks, we ended up with entries for 42 subject areas. We had 220 comments and links from 18 fellow bloggers supporting the endeavor. You can find a list of the subject areas, with links to the individual posts, here.

At the end of the Canons run, I expressed hope that the canons could serve as a continuing resource. However, I also recognized that "[a] weakness of blogs posts is that they seem to have a short shelf-life: once a post is more than a day old, it can be forgotten." I don't know whether folks continue to check out the Canons, but I suspect that they have been largely forgotten. So it seems like a good time to revive the project, eight years down the road, and think again about those books, articles, and chapters that are canonical -- that everyone in the discipline should have read.

So this post is intended as an announcement for the project and a request for feedback. What's the best way to proceed? I'm planning on having individual posts for individual subjects, as before. But this time, I'm thinking of asking for the following:

Classic Canons. The pieces that form the foundation for the discipline.

Forgotten Canons. The pieces that have not gotten the attention they deserve.

New Canons. The pieces from the last decade that deserve canonical status.

Let me know what you think of the project, whether the old one was helpful, and what we can do this time to make it better.

Sunday, July 13, 2014

The risk to catalyzed fans

As everyone in the Free World now knows, LeBron James chose not to re-sign with the Miami Heat and is on his way back to Cleveland to play for the Cavs, the team he abandoned (to angry rants and burned jerseys) four years ago. So it appears the efforts of two Miami sports-radio hosts to use charitable fan contributions to help keep James did not work.

This demonstrates the risk in Dan, Mike McCann, and my idea about fan action committees--it might not work and if it might not work, fans might not want to participate (I have not been able to find out how much money was donated to Boys & Girls Club or how many fans contributed). One way around that is to utilize a trigger, as many kickstarter campaigns do--the contribution remains only a pledge until and unless the player signs; this one did not have a trigger, and I imagine most charities will not allow triggers when the program is set up directly through the organization (as this one was). Alternatively, organizers hope fans still contribute despite the risk. Perhaps fans continue to donate as a way of engaging in the purely expressive act of showing their support for team and player; fans spend money on many things to support their team--why not charity? Alternatively, fans may be willing to participate because contributing to the charity is a social good (note the non-political nature of the chosen charity) and worth the donation, even if not achieving the alternative goal of convincing James to stay.

Wednesday, July 02, 2014

Some good news

I'm also thrilled to note that Rachel Harmon's recent contribution here -- about the Riley case and the fragility of policing knowledge demonstrated by the Court therein -- was selected to be included in a Green Bag/Journal of Law series called The Post (here and here); that series showcases exemplary legal writing from the blogosphere.

Monday, June 30, 2014

Catalyzing Miami Heat fans

LeBron James has opted out of the final year of his contract with the Miami Heat and become a free agent (although he is generally expected to re-sign with the Heat for less money, allowing the team to sign better surrounding players). Just to be sure, the hosts of a show at a Miami sports radio station have announced LeBron-a-Thon, expressing support for James by raising money for Boys & Girls Clubs of Broward County. One of the hosts kicked things off with a $ 1000 donation.

This is an example of what we describe in the paper as a charitable FAC. James is a big supporter of Boys & Girls Club--"The Decision," the ESPN media circus in which James announced his intention to sign with the Heat in 2010, was designed to raise money for that organization. This also shows how easy it is to set something up, although we obviously will have to wait to see if it succeeds in 1) raising significant amounts of money or 2) helping keep James in Miami (causation will be impossible to show, of course). This is slightly different than what we discuss, as there is no trigger--money is donated to the charity regardless of what James does. But this highlights the purely expressive nature of such FAC contributions--fans are saying, in essence, "we appreciate you and so want you as part of our team that we will contribute to a worthy cause that is dear to you." Moreover, the monetary benefit to this reputable charity from fan donations likely represents a net public good, as charity presumptively does, regardless of what James chooses to do.

Now we wait to see what teams beside the Heat emerge as suitors for James and whether fans of those teams launch a similar campaign.

Monday, June 02, 2014

Bad day for the Federal Circuit

Today was a pretty bad day for the Federal Circuit, as it was unanimouslyreversed twice in decisions from the April sitting (meaning it took less than two months for the Court to do the reversing). While we should not expect SCOTUS to simply rubber stamp the Federal Circuit because of that court's patent expertise, the Court has now unanimously reversed the Federal Circuit three times this term alone. Anyway, this seems a good excuse to highlight the work of Paul Gugliuzza of Boston University, who combines expertise in IP and Fed Courts and has written extensively on the Federal Circuit and its expansion (for good and ill) of its power.

Wednesday, May 21, 2014

Sunstein on Epstein

Cass Sunstein has a quasi-gossipy and (therefore/still?) interesting review of Richard Epstein's latest book up on TNR. My quick sense is that it seems unnecessary and probably anachronistic for Sunstein to have credited (or blamed) or even linked Epstein for Tea-Party Constitutional politics altogether. E.g., "Everyone knows who Rand Paul's father is, but in an intellectual sense it is Richard Epstein who is his daddy." Having done so, I also wonder why Randy Barnett's work in the area isn't equally (credited or blamed) or linked.

Wednesday, May 07, 2014

The end of roller derby names?

In the closing segment of this week's Slate Hang Up and Listen podcast (go to 57:55 mark), Slate's Josh Levin discusses efforts to make roller derby a more serious sport at the intercollegiate and international levels, also discussed in this Slate piece. Making the sport serious includes the demise of the roller derby nickname--Nun Meaner, Sigmund Droid, Haute Flash, Carmen Getsome, and my favorite, Stone Cold Jane Austen (that one belongs to Devoney Looser, an English professor at Arizona State). More players are going by their given names, at least in international competition, to make the sport seem less like professional wrestling. Occasional GuestPrawf Dave Fagundes, who wrote the definitive article on roller derby names, will no doubt be saddened to learn of this development.

And, since we all need a break from grading: What would you choose as your law- or law-professor-related derby name?

The workshop is open to untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2014 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present. There is no registration fee.

The conference will begin with a dinner on Thursday, October 9, then panels on Friday, October 10 and Saturday, October 11. Each panel will consist of approximately 4 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers. Georgia Law will provide all lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs.

Those wishing to present a paper must submit an abstract by June 20, 2014. Papers will be selected by a committee of past participants, and presenters will be notified by early July. Those planning to attend must register by August 29, 2014.

Thursday, April 03, 2014

Linguistic Versatility (or is it Hegemony?) and the Law

There's been much hub-bub the last few years in the US re: legal education and innovation. Assume for a moment that an American law school wanted to offer a degree program leading to an American JD that would be wholly instructed in Spanish or Chinese or Hebrew. Would anyone reasonably object on cultural grounds or is this purely the kind of program that should be allowed to unfold so long as it otherwise maintained a strong bar passage rate?

When I teach in Israel, which I do with some frequency and affection, I do so in English, as part of the increased expectation that Israeli lawyers should be fluent with English language as well as international/comparative approaches to law. Yet, I fully accept the argument made by one of the stakeholders that fluency in Hebrew is essential to representing one's clients well in Israel. I certainly think my competence with English is critical to my being a tolerably decent scholar -- in English. But if Chinese-speaking professors were in the US to teach American law in Chinese, I don't think I'd have much basis for objection. Let the market sort it out seems roughly right.

The fear about this seems that if the Israeli law schools started teaching in English, there'd be a decline in Hebrew language competence and that could affect lawyer performance for clients. I don't really see that as a threat realistically, because if you're going to practice in Israel, you'll want to speak Hebrew; what's more, if there's a bar passage requirement that occurs in Hebrew, then that would probably provide a check, along with malpractice claims.

To my mind, what I think of as the French linguistic protectionist approach seems here kind of ... pathetic. But maybe I'm missing something.

Tuesday, April 01, 2014

Orality in litigation

I previously have written about Daniel Meador's arguments (primarily in 1983 in Maryland Law Review) for greater orality in the appellate process. Now comes The Reappearing Judge (forthcoming in Kansas Law Review) by Steve Gensler (Oklahoma) and U.S. District Judge Lee Rosenthal (former chair of both the Committee on Practice and Procedure and the Civil Rules Advistory Committee). They argue for increased live contact between trial judges and attorneys, including many Rule 16 conferences (permitted but not required under the rules), premotion conferences for discovery and summary judgment motions (the district judge I clerked for would immediately get the parties on a telephone conference as soon as a discovery motion was filed), and increased oral argument on dispositive motions. The goal is at least some increase in the number of trials--the ultimate oral process.

The common theme is that more oral presentation of issues (an essential component of greater attorney/judge contact) makes for better, more efficient, and more functional process. Gensler and Rosenthal explicitly highlight premotion conferences as a way to avoid the multi-step "minuet" of motions briefing, saving lawyers the time and money of having to prepare all that briefing and supporting documentation and judges the time of having to review it all. They argue it is easier to get to the core of the issues and to separate the wheat from the chaff with oral presentation, controlled by questions from the court. By contrast, they argue, written motions alone become overly long and complex, with parties often talking past one another, thus they do not reflect the best way to present, understand, or resolve issues. Ironically, of course, their argument comes when written argumentation is becoming easier and faster (via computers, electronic filing, etc.).

Is it right that oral presentation is better than written presentation? Should the legal profession re-orient itself to more oral litigation, at least in the main run of cases that are not overly complex? And how might that affect what and how we teach in law school?

Sunday, March 23, 2014

Students take on the New Yorker cartoon

I presented that New Yorker cartoon (the one Paul wrote about here) to my Civ Pro students; you can see some of their entries by paging through the course blog. Some of them are pretty good and even incorporate Civ Pro concepts, although they read the cartoon as depicting lawyers playing ping pong.

Wednesday, March 19, 2014

JOTWELL: Coleman on Reinert on meritless litigation

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Alex Reinert's Screening Out Innovation: The Merits of Meritless Litigation (forthcoming in Indiana L.J.), which critiques a host of doctrines for not distinguishing meritless claims from frivolous claims. On a separate note, Reinert's article is terrific and I have tried to get my students to grasp that basic distinction, at least rhetorically.

Thursday, March 13, 2014

What Makes Lawyers Happy? A Study

My colleague and guru, Larry Krieger, has this very cool new paper up on SSRN (co-written with K. Sheldon), and in the space of a couple weeks, it's already received an avalanche of downloads. Here's the abstract. Smart law review editors should want to get their paws on this since it will be cited a zillion times.

"Attorney well-being and depression are topics of great concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. This article reports a unique study establishing a hierarchy of five tiers of factors for lawyer well-being, including choices in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory. Data from several thousand lawyers in four states show striking patterns, repeatedly indicating that common priorities on law school campuses and among lawyers are confused or misplaced. Factors typically afforded most attention and concern, those relating to prestige and money (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors marginalized in law school and seen in previous research to erode in law students (psychological needs and motivation) were the very strongest predictors of lawyer happiness and satisfaction. Lawyers were grouped by practice type and setting to further test these findings. The group with the lowest incomes and grades in law school, public service lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions and with the highest grades and incomes. Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and direct implications for attorney productivity and professionalism are explained."

Monday, March 03, 2014

An Empirical Analysis of the Infield Fly Rule

The third piece in my "Infield Fly Rule Trilogy," titled An Empirical Analysis of the Infield Fly Rule, is up on SSRN. As the title suggests, I (with the help of seven FIU students, who all seemed to enjoy themselves) conducted an empirical study of the past four MLB seasons to find out the frequency of Infield Fly calls and the effectiveness of the rule in avoiding dramatically inequitable cost-benefit exchanges.

The earlier pieces can be found here, here, and here. The abstract of the new paper follows the jump.

Legal scholars have written extensively about baseball’s Infield Fly Rule -- its history and logic, its use as legal metaphor, and its cost-benefit policy rationales. This paper now conducts the first empirical analysis of the rule, exploring whether the rule’s legal and policy justifications are statistically supported. Based on a review of every fly ball caught by an infielder in the relevant game situation in Major League Baseball from 2010-2013, this paper measures the frequency and location of Infield Fly calls and the effect the rule has on individual games, all to determine whether the feared cost-benefit disparities that motivate the rule would, in fact, result absent the rule. Ultimately, the merits of the Infield Fly Rule cannot be measured empirically, at least not without resort to some ex ante value judgments; the normative conclusion one draws about these data depends on where one starts -- a supporter of the rule and a skeptic both will find confirmation in the information gathered in this paper. Nevertheless, the numbers shed specific and interesting light on the realities of baseball’s most unique and famous (or infamous) play.

Sunday, March 02, 2014

Legrand and Werro on the Doctrine Wars

Professor Pierre Legrand teaches at the Sorbonne and has been visiting at the University of San Diego Law School and at Northwestern University Law School. Professor Franz Werro teaches at the Université de Fribourg and at the Georgetown University Law Center.

When It Would Have Been Better Not To Talk About a Better Model

So, the German Wissenschaftsrat — a government body concerned with the promotion of academic research (broadly understood) — suggests that legal scholarship should become more interdisciplinary and international. And the American Bar Association — a non-government body devoted to the service of the legal profession — opines that legal education should become more practical and experiential. These pro domo pleas featuring their own interesting history and having generated much debate already, we want specifically to address Professor Ralf Michaels’s reaction.

In his post on “Verfassungsblog” dated 19 February 2014, Professor Michaels claims that “the contrast [between the two reports] points to two problems of the US law school model — and thereby highlights two attractive traits of German education”. According to Professor Michaels, the first difficulty faced by US law schools is that “they are largely financed privately”, which means that “it becomes harder and harder to justify spending significant resources on anything other than the recruitment of better students and on their ability to land well-paying jobs”. The second complication for US law schools that Professor Michaels identifies is related. For him, “[t]he consumer model of legal education requires, ultimately, that law students are taught nothing other than skills”. His reasoning is as follows: “[I]nterdisciplinary scholarship may decline, but doctrinal scholarship cannot take its place because academic understanding of doctrine has been thoroughly discarded”, ergo, “scholarship of any kind may be viewed as useless” and “[l]aw schools may, finally, turn into pure trade schools”. But, in Professor Michaels’s words, “in Germany, this is unlikely to happen”. Professor Michaels’s two-prong explanation is that, on the one hand, “[p]ublic financing of law schools guarantees that the public good aspect of legal education can be maintained” and, on the other, that “the continued acceptance of doctrine as a subject worthy of scholarly attention means not only that scholars will continue to be able to produce scholarship; it also means that the quality of this scholarship will remain at its high level”. To emphasize his claim on the subject of legal doctrine, Professor Michaels writes that “German doctrinal scholarship will always be superior to that of other countries”. He also refers to “the historic advantage [that German law schools] have in excelling at legal doctrine”.

After Professor Robert Howse had replied on “PrawfsBlawg”, Professor Michaels wrote a rejoinder, again on “Verfassungsblog”, with a view to clarifying his initial comments though in effect changing his argument. Professor Michaels’s revised version of his initial assertion is that “the basic claim that German legal scholarship excels more in doctrine while American legal scholarship excels more in interdisciplinarity […] has become almost a truism in comparative law”. Still in his second post, Professor Michaels notes that there are “real institutional differences that perpetuate cultural differences” and that these “cannot simply be wished away”. He adds that “[t]o recognize such cultural differences is our daily job as comparative lawyers”. With specific reference to the statement in his first post that “German doctrinal scholarship will always be superior to that of other countries”, Professor Michaels writes that his “intent” was “quite the opposite [of] claim[ing] superiority of one tradition over the other”. Rather, he says, “[he] tried to make a point about relative incommensurability”. Still in his second post, Professor Michaels insists that “[l]egal education and legal scholarship in different countries are not culturally determined. Nor are they immune to change. At the same time, they exist within the constraints of cultural and institutional traditions, and they respond to these constraints in idiosyncratic ways”. He adds as follows: “[T]he idea that excellence will look similar, at some point, in all systems of the world, appears to me not only unrealistic, but also undesirable”. In his own words, Professor Michaels seeks to “encourage German scholars to keep playing to their strength” while “the US should play to [its] strengths” also. The conversation spurred by Professor Michaels’s intervention has since continued both on “Verfassungsblog” and on “PrawfsBlawg” — and presumably elsewhere also.

In the way senders of hasty e-mails have been writing to take them back, Professor Michaels has wanted to reclaim his statement that “German doctrinal scholarship will always be superior to that of other countries”. Professor Michaels must, of course, be allowed his afterthoughts. But there is a clear sense in which once words have been released in writing, whether in a hasty e-mail or otherwise, any attempt at reconsideration can appear unconvincing. To suggest, as Professor Michaels did after Professor Howse’s initial reply, that he was only advocating that both German and US legal scholarship should be “playing to their strength[s]” strikes us as being indeed unconvincing. After all, elsewhere in his two posts Professor Michaels mentions how German legal scholarship is destined to “remain at its high level”, how it enjoys a “historic advantage”, and, in sum, how it “excel[s] at legal doctrine”. While we are not in a position to divine Professor Michaels’s intent, his many iterations seem difficult to reconcile with anything other than a genuine belief in the German scholarly advantage. Needless to say, Professor Michaels is welcome to his faith. But we think it behooves a seasoned comparativist carefully to distinguish between an expression of preference and an allegedly scholarly formulation whose language may fairly be taken to suggest that a model — one’s “home” model, of all models! — can act as some sort of universal referent (in line with a metric which remains unspecified).

The fundamental point here is that it cannot do to defend the idea that German legal scholarship would be excellent as such. Indeed, Professor Michaels’s assertion is as implausible as if he maintained that “French literary criticism will always be superior to that of other countries” or that “Japanese aesthetics will always be superior to that of other countries” or for that matter that “the Spanish language will always be superior to that of other countries”. The ascertainable fact is that German legal scholarship, French literary criticism, Japanese aesthetics, or the Spanish language — to the extent that such entities can be persuasively delineated — are cultural formations. They are made, fabricated, constructed by women and men interacting in a certain place and at a certain time. They are artefacts. It is not then that there would be something like “cultural excellence” an sich, for all to see. Rather, the quality of excellence is ascribed by an ascertainable constituency of individuals who appreciate “excellence” according to local criteria. For example, the matter of “excellence” in legal scholarship will be attributed by a group of jurists who have been trained to deem certain scholarly forms to be “excellent”, that is, who have been inducted into appreciating certain scholarly practices and socialized into favoring certain scholarly values. To be sure, German scholarly undertakings will often, perhaps typically, adopt a conceptual form and eschew the candid policy concerns that are familiar to US academics. And the reader of German legal scholarship can therefore expect more on systemics and less on patriarchy, more on categories and less on externalities, more on subsumption and less on critical race theory. But none of these German predilections is intrinsically “excellent” or “superior” to prevailing perspectives in other countries. In other words, scholarly excellence very much lies in the eye of the beholder. In the end, there is neither more nor less to be said for or against the “excellence” of German legal scholarship — which, if we are willing to assume such a configuration, illustrates but one way among others to approach the study of law, no matter how influential. Lest influence be confused with rightness or truthfulness, let us emphasize that it is not because German legal scholarship enjoys a substantial and longstanding following that it can claim any particular entitlement to being right or true. Nor is it the case that the tiresome repetition on the part of so many German jurists that their scholarly model is best can, in time, somehow elevate it to the exalted status of universal yardstick by which other forms of scholarship would be assessed. Needless to add, precisely the same reservations must be entered as regards United States legal scholarship, which must also confine any claim to excellence it may wish to hold to a specifiable horizon.

As regards scholarship “US style”, Professor Michaels, while asserting its successful approach to interdisciplinarity, claims to be in a position to identify various and serious deficits. In this respect, we are moved to make two points and two points only (there would be more to say, for instance as regards the distinction Professor Michaels appears to be drawing between what he calls “the public good aspect of legal education” and the teaching of “skills” or with respect to his assumption that doctrinal writing would have fallen into discredit in the United States after US academics had realized that it could not be “sufficiently exact” or indeed as concerns his basic postulate about the absence of doctrinal work on the US academic scene).

First, even if Professor Michaels’s argumentum in terrorem were to be vindicated and even if at some point in future US “law students [were to be] taught nothing other than skills”, it would not follow that US law schools would “turn into pure trade schools”. There is at least one reason why Professor Michaels’s conclusion comes across as a non sequitur, and it is that for the most part scholars in US law schools do not pursue their scholarship to fit their teaching. It is not, of course, that scholarship does not inform teaching. It does, and it must. But scholarship is not beholden to teaching such that whatever happens to make teaching more practical or experiential will ipso facto disincentivize scholarship. (In fact, one can imagine that a number of law teachers being invited to teach more practically or experientially would take to scholarship with renewed vigour.) In other words, even if Professor Michaels is right and, concessio non dato, the class on anticipatory breach of contract were somehow to become strictly doctrinal or skills-oriented, there is nothing in this development that would inevitably discourage contract law professors from continuing to research Max Weber’s sociological understanding of contractual relationships or to pursue an investigation into the economics of early termination of contracts. To suggest, as Professor Michaels does, that “legal scholarship ends up as subordinate to legal teaching” is an overstatement. Rather, US legal scholarship can be expected to resist the commodification of teaching in significant ways — as, indeed, it demonstrably does at present. If anything, the key issue lies elsewhere — and it is one that Professor Michaels apparently misses although it is currently being fiercely debated in the United States. What if law teachers in US law schools were made to teach more than they is the case at present and found themselves having less time to research and write as a result? Arguably, scholarship would then be detrimentally affected, at least quantitatively (though one could claim that such a market correction is long overdue).

Secondly, Professor Michaels’s assumption that students are narrowly focused on obtaining gainful employment and that they will therefore enrol only in courses featuring strictly practical and measurable benefits strikes us as painting an unduly philistine picture of the student body (not to mention the law school’s curriculum committee). We both regularly teach comparative law in US law schools, and we both find that despite real financial pressures and legitimate concerns with life after law school, a significant group of law students — often some of the best ones — remains interested in “enrichment” courses ranging beyond the bar examination. Year after year, our offerings on comparative law continue to attract a critical mass of students, a number of those being sincerely committed to the issues and genuinely interested in the materials. We do not doubt that our experience is also that of many of our colleagues teaching, let us say, “non-mainstream” subjects — and we suspect our experience may well tally with that of Professor Michaels himself. In sum, we take the view that the US law school runs little risk of being visited by Professor Michaels’s dire predictions.

It remains for us to salute how in the two posts of his that we have addressed, though mostly in his second one, Professor Michaels emphasizes the cultural character of legal scholarship (and how he mentions that culture is neither immutable nor determined), how he insists that scholarly cultural response is singular (he calls it “idiosyncratic”), how he argues that the matter of cultural difference cannot be eliminated at will, and how he indicates that the idea that legal scholarship would be the same across legal traditions “appears […] not only unrealistic, but also undesirable”. As Professor Michaels insightfully articulates the matter, in the end variations in legal scholarship pertain to “incommensurability”. In our view, Professor Michaels does well to contend that given incommensurability, “[t]o recognize […] cultural differences is our daily job as comparative lawyers”. We can only hope that this heterodox claim will find a devoted following — not least in Germany where, as all comparativists know, comparative research, largely made inHamburg, has sought to implement an alternative set of assumptions focusing at once on the ascertainment of similarities across laws and on the identification of the better law.

Moving past the title to something like the merits, I'll confess I'm pretty skeptical toward the general thrust of Seidman's argument (as characterized by Waldron and as evidenced in his NYT oped from last year). He is, as Waldron notes, basically a philosophical anarchist and that's a position I find largely untenable under particular conditions of a reasonable well-working liberal democracy. (Importantly, some of Waldron's work on political obligation was what led me down that path but little of Waldron's work on that subject figures into his review of Seidman.) One last mildly interesting thing to note is that Seidman's embrace of philosophical anarchism and his export of it to constitutional theory basically coincides with the thrust of Abner Greene's recent book, Against Obligation. There are differences between them, some of which are discussed here (review of Seidman by Greene) and here (review of Greene by Seidman). For those interested in these overlapping and important projects, the BU Law Review published a symposium on these two books last year, and you can find the contributions here, which I'm looking forward to exploring further, since, full disclosure, I am writing dreaming up something inspired by these various works on the moral and political obligations of prison or other corrections officials as a distinct class of officials).

Tuesday, February 25, 2014

A Post-Script on Samuel Sheinbein

I'm not sure how many of you remember this, but one of the more fascinating stories my co-authors (Jennifer Collins and Ethan Leib) and I relied upon in our 2009 book on criminal justice and family status had to do with Samuel Sheinbein. After he gruesomely murdered someone in Maryland, Sheinbein, with his father's assistance, escaped to Israel and avoided extradition. The Sheinbein parents thought they were doing their parental duty by trying to squire their son to a more compassionate jurisdiction. Sheinbein was charged and convicted in Israel and sentenced to 24 years in prison in Israel, with furloughs, which is probably a better outcome than he would have received in Maryland. (Though with the recent excuse of affluenza, who knows?)

For our purposes, we were primarily interested in Sheinbein's parents' involvement in assisting their son, since our Privilege or Punish: Criminal Justice and the Challenge of Family Ties focused on two questions: what role does and what role should family status play in the operation of the criminal justice system? Among other things, we discovered that about a dozen states around the country explicitly carve out exemptions for family members from laws that otherwise prohibit assisting fugitives and we argued that these exemptions were largely misguided and should be jettisoned. Here's a short version of what we argued on the Freakanomics Blog.

The Sheinbein parents' good intentions, certainly understandable if not justifiable, have had deadly consequences. For the latest news is that Samuel Sheinbein the killer is now dead. He was shot by special forces in a prison raid once he barricaded himself in a room within the prison; somehow, Sheinbein secured the firearm of a guard and seriously wounded three prison officials along the way. There's no definite lesson to be learned here from one anecdote--one might well imagine the Sheinbein saga ending with a story of redemption and rehabilitation. Here, however, it was intransigence and bloodshed. And so, when legislators are considering whether to be sympathetic to parents or children placed in difficult positions by their criminal family members, they would also do well to remember the Sheinbein story, a case where we see the cruelty and cost of misplaced compassion.

Tuesday, February 18, 2014

JOTWELL: Tidmarsh on English civil justice reform

The new essay on JOTWELL's Courts Law is by Jay Tidmarsh (Notre Dame) discussing civil justice reform efforts in England, under the leadership of Lord Justice Jackson. (These efforts are notable, given recentconcerns about the proposed FRCP discovery amendments and the direction they are taking on reform).

Thursday, February 06, 2014

FIU's First Decanal Lecture on Legal Education

I was happy to welcome Dean Daniel Rodriguez (Northwestern) to FIU this week, for our First (hopefully Annual) Decanal Lecture on Legal Education, titled Innovation in legal education. The video of his lecture is after the jump.

Decanal Lecture on Legal Education

The idea behind what I hope will become an annual program is to invite a dean to the College of Law for a multi-day visit to talk to the law school community about any part of the past, present, and future of legal education. Rodriguez will do a faculty workshop on Tuesday and the lecture, entitled Innovation in legal education reform, for the FIU community on Wednesday.

Again [TV announcer voice], if you're in the Miami area on Wednesday and can make it over to the law school, the event is open to the public. I hope to post video of the lecture later this week.

Innovation in legal education reform

From Ecclesiastes 1:9, we learn that “what has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.”

Not an encouraging message to those of us who are working hard to reimagine the modern law school. But a reality check from those who would advise us that such reimagining is a fruitless endeavor. And what counts as “new” anyway? From the law school trenches, we celebrate innovation and creative rethinking of our educational structures and processes while wondering, in our private moments, whether we are creating truly novel modalities of education and professional training, are essentially reinventing the wheel, or are mostly scrambling to keep up with a rapidly changing profession and an educational world gone haywire.

I want to talk about innovation and legal education reform by focusing on innovation as an intriguing concept, and as an aspiration. What do we talk about when we talk about innovation in law schools? How are the disruptive innovations at work in the professional environment into which we are sending our students? And what are the important connections between the answers to these two questions?

Friday, January 24, 2014

Stanley Fish and the Meaning of Academic Freedom

[TV announcer's voice]:

If you're in the Miami area today, stop by for the FIU Law Review Symposium, Stanley Fish and the Meaning of Academic Freedom. The event runs from 4-6 p.m. at the College of Law. Speakers include Fish, Robert Post, Fred Schauer, and Larry Alexander; the focus is on Fish's new book, Academic Freedom: From Professionalism to Revolution.

Thursday, January 16, 2014

Stanley Fish and the Meaning of Academic Freedom

FIU Law Review will host Stanley Fish and the Meaning of Academic Freedom next Friday, January 24, 2014. This is a roundtable discussion of Fish's new book, Versions of Academic Freedom: From Professionalism to Revolution. Participants, besides Fish, are Robert Post (Yale), Larry Alexander (San Diego), and Fred Schauer (Virginia). The Review will publish the discussion, papers from the participants, and a micro-symposium on the book.

Monday, January 13, 2014

A couple reading suggestions for students in criminal law and the Spring 2014 schedule for the NYU Crim Theory Colloquium

N.B. This post is a revised version of an earlier post and is basically for crimprofs and those interested in crim theory.

This week marks the onset of classes for many law schools across the country, and that means the first criminal law class is here or around the corner for some 1L's. As many crim law profs lament, first-year criminal law casebooks generally have pretty crummy offerings with respect to the state of the field in punishment theory. (The new 9th edition of Kadish Schulhofer Steiker Barkow, however, is better than most in this respect.) Most first year casebooks give a little smattering of Kant and Bentham, maybe a gesture to Stephen and, for a contemporary flourish, a nod to Jeffrie Murphy or Michael Moore or Herb Morris.

Murphy, Morris, and Moore deserve huge kudos for reviving the field in the 1970's and since. Fortunately, the field of punishment theory is very fertile today, and not just with respect to retributive justice. But for those of you looking to give your students something more meaty and nourishing than Kantian hand-waving to fiat iustitia, et pereat mundus, you might want to check out and possibly assign either Michael Cahill's Punishment Pluralism piece or a reasonably short piece of mine, What Might Retributive Justice Be?, a 20-pager or so that tries to give a concise statement of the animating principles and limits of communicative retributivism. Both pieces, which come from the same book, are the sort that law students and non-specialists should be able to digest without too much complication. Also, if you're teaching the significance of the presumption of innocence to your 1L's, you might find this oped I did with Eric Miller to be helpful as a fun supplement; it concerns the quiet scandal of punitive release conditions.

Speaking of Cahill (the object of my enduring bromance), Mike and I are continuing to run a crim law theory colloquium for faculty based in NYC at NYU. On the heels of AALS, we had Francois Tanguay-Renaud and Jenny Carroll present last week, and the schedule for the balance of the semester is this:

As you can see, the schedule tries to imperfectly bring together crim theorists of different generations and perspectives. This is now the seventh semester of the colloquium and we are grateful to our hosts at NYU and Brooklyn Law School who have made it possible. If you're a crimprof and interested in joining us occasionally, let me know and I'll put you on our email list for the papers.

Monday, December 09, 2013

Prawfsfest! XI is about to start. Big thanks to Pepperdine and Michael Helfand

I'm so excited to announce that Prawfsfest! XI is about to start this morning. We used to run two of these a year, and then took a hiatus, but thanks to the efforts of Michael Helfand, we are reviving it and I'm delighted to publicly trumpet and thank our wonderful hosts in Malibu. We've been hearing lots of apologies by people about the weather, which is unseasonably cold, but unless these apologies are statements of regretful agency as opposed to "I'm sorry you're suffering" then I'm pretty sure I don't want to hear them anymore:-)

Wednesday, November 20, 2013

JOTWELL: Erbsen on Kaplow on multistage adjudication

The new essay on JOTWELL's Courts Law comes from Allan Erbsen (Minnesota), reviewing Louis Kaplow's Multistage Adjudication (Harv. L. Rev.). This is a terrific piece discussing critical differences in in how distinct procedural devices function at different stages of litigation; Allan situates that in the greater concerns about gatekeeping and the interdependence of categories. Both the article and Allan's review are worth a look.

Friday, November 01, 2013

Academic disclosures

Maybe I missed it but i haven't seen too much interest in our corner of the world about this interesting piece from the Nation (I know, I don't often link to it!). Anyway, curious for people's reactions about what are the optimal level of disclosures for legal academics. I realize Larry Lessig's got a disclosures page. Should we all have one of those if we ever make a dime off outside income? Would it include a requirement to disclose even ghost-writing briefs for law firms, etc? Or are we worried only about the corruption of our public identity, and not the private sale of what little talents we have to offer?

Thursday, October 24, 2013

JOTWELL: Epstein on Enns and Wohlfarth on swing justices

The new essay for JOTWELL's Courtslaw comes from Lee Epstein (USC), reviewing Patrick K. Enns and Patrick Wohlfarth's The Swing Justice (forthcoming in Journal of Politics), which takes a new look at the concept of swing justices.

Tips for newly tenured professors

Tuesday, October 08, 2013

JOTWELL: Pfander on Ewald on the Committee of Detail

The latest essay for JOTWELL's Courts Law Section comes from James Pfander (Northwestern), reviewing William Ewald's The Committee of Detail (Constitutional Commentary), which explores the role of the Committee of Detail (and particularly James Wilson) at the Philadelphia Convention in the creation of the Article III judiciary.

Monday, October 07, 2013

A Grenade in the Prison Nursery

James Dwyer at William and Mary Law has an explosively interesting and sharp draft (forthcoming in Utah LR) up on SSRN called Jailing Black Babies. If you have a passing interest in the intersection of family life and criminal justice, race and law, or just how to do a law review article with panache and insight, then you should read it (h/t to Berman at SLP). I can't endorse the underlying merits because I don't know the studies that Dwyer skewers along the way, but the piece is, if true, a wonderful parade of argument in law and policy, and, in its own way, quite courageous. Kudos.

One minor quibble. At times, Dwyer takes to task the advocates for incarcerated moms for "wishful thinking" re: the putative benefits of prison nurseries. I don't have reason to doubt that there's little empirical support for developing prison nurseries now that some studies (as described and critiqued by Dwyer) show little grounds for them. But at least at some earlier point, it seems worrisome if critics insist that policy entrepreneurs provide empirical support for the benefits of a relatively new policy idea. How do we prevent policy ossification if we insist on studies for everything in advance? To be sure, Dwyer has probably convinced me that it was a form of constitutional folly to put kids into prisons with their moms. But if the legal arguments weren't there, and we were considering a strictly policy question, it wouldn't be batshit crazy to think that there might be some benefits to children of incarcerated parents being together with them; it *might* be the kind of thing we might want to see at least some types of (low-security) prisons experiment with. Dwyer's right, however, that there seems be little academic constituency for a child-centered view of these policies and their alternatives. One cannot read Dwyer's draft without feeling deeply concerned with this new policy bandwagon while also saddened by the conflict he spotlights between parental and children's interests.

HLR has more women. Discuss.

The Crimson has a story reporting that since the Harvard Law Review adopted a gender consideration for its discretionary slots, the review has almost doubled the number of female admittees to its membership. See here (reporting that women went from 9 to 17 out of roughly 45 people admitted for this year).

Those six of you who have followed this issue with some interest over the years may remember that both Justice Kagan (in her former decanal role) and Professor Carol Steiker (a former President of HLR herself) opposed adding gender to the list of considerations that would figure into the "discretionary" slots. Their stated concern was that it would cast doubt on the accomplishments of those women (including themselves?) who got onto HLR through the "blind" means (writing competition or grades-inflected scores of writing competition). Of course, this is the same rationale often thrown against affirmative action measures for visible minorities, so one wonders a) do they oppose the use of AA for race/ethnicity or other considerations? and b) if not, what are the distinguishing features are of race/ethnicity versus gender? Is it some kind of critical mass theory to the effect that women have without benefit of affirmative action policies still formed roughly 25% of the law review membership? I confess I'm puzzled by these reactions and not entirely sure what I would do if I were in a decision-making capacity on the HLR. Helping or inspiring people to Lean In during law school doesn't seem nearly so sufficient, though it does seem necessary. Am I wrong?

Anyway, here are some other relevant sources: a story on the HLR internal study a decade ago and some of the more recent coverage on Shatter the Ceiling, a project meant to facilitate female achievement at the Law School.

Friday, October 04, 2013

Compensation, Takings and Preventive Detention for Failure to Appear and Dangerousness

For a little while a couple years ago I was entertaining the thought that pretrial detention based on risk-based considerations (failure to appear or danger to oneself or the community or to the judicial process) was a regulatory takings that warranted compensation (at least normatively if not constitutionally). That position, it turned out, was largely advanced in a thoughtful piece by GW prof Jeff Manns on Liberty Takings.

I was delighted that I didn't pursue that line of thought, not only because it was preempted by Jeff but also because I soon realized the view wasn't entirely sound (at least to the extent I recall it now). In short, there's a big difference between the innocent property owner and the person who is preventively detained: namely, there is a hearing where a judicial officer finds that, at least in the fed context, clear and convincing evidence shows that the defendant poses a social risk of some sort that requires containment or management, however you want to frame it. (Manns recognizes the distinction between the innocent homeowner and the pretrial detainee but I think he gives it less normative significance than I do.)

Of course, that distinction doesn't mean the pretrial detainee deserves no compensation, but the force of the "takings" rhetoric or jurisprudence attenuates substantially; if there is a warrant for compensation it likely occurs at a substantially discounted rate insofar as the detainee is responsible for having created the risk.

Interesting questions bear on what the discount should be, what the baseline should be, etc. Moreover, it doesn't at all follow that the detainee should be "boxed" or confined in the same kind of facilities as those who are convicted. A least intrusive means test is probably warranted, perhaps triggering what my colleague Sam Wiseman, in his forthcoming YLJ piece, has called a right to be monitored (electronically).

Let's stipulate for purposes of argument that at least in some cases, confinement is required for particular people, rather than monitoring. The box the detainee goes in, however, should be a pretty nice box, glibly akin to condos with views of the beach and wifi, rather than putrid and overcrowded jail cells. Along the same lines, if I'm right about the need to separate these preventive from punitive purposes, there would be no justification for extending credit for "time served" if the person is ultimately convicted (creating my unorthodox but I think justifiable view, a view that is naturally (!) pace my friend Adam Kolber in Against Proportional Punishment).

When looking at the pretrial detainee world, there is often agitation for compensation. But this doesn't necessarily follow as a matter of rights or out of respect for the presumption of innocence. Even compensating a later-acquitted defendant doesn't necessarily follow so long as the standards of proof and purposes/structures of confinement are properly respected. Compensation to the detained person would only be warranted if the detention proved to be tortiously procured through some form of negligence, recklessness, etc on the part of the prosecution. But it's not obvious that a good-faith preventive detention of a person who, with a lawyer by his side, is shown by the gov't to be dangerous by clear and convincing evidence, requires anything like a liberty takings model for compensation. The preventive detention box has purposes and structures and procedures that can be readily distinguished from those appropriate to the punitive boxes with their underlying purposes.

Of course, if we're serious about keeping these social projects distinct, then, per Justice Stevens' dissent in Salerno, the presence of an indictment is of no significance (except to the flight risk group). And if that's true, we should be able to have a restrictive though non-punitive form of preventive detention available for the future dangerousness folks (putting me in good company with Justice Stevens, though not Justice Marshall in Salerno). That model would probably look a good bit like Chris Slobogin's proposed regime of preventive detention (see his piece in Criminal Law Conversations), but perhaps without some of the pre-requisites he required (again, if I recall correctly).

This was roughly the set of views I tried to communicate to my students yesterday in teaching about pretrial detention and Salerno. However, as we were talking in class yesterday, I thought the liberty takings argument had more force in the context of the post-conviction post-punishment detainment of folks, e.g., the sexually violent predator types in Kansas v. Hendricks. I realized those guys do warrant full compensation for the liberty takings (though again, query what the baseline is there, and whether the baseline should be discounted for earlier choice-tracking behavior on their part).

To summarize, I wonder who has the best claim to liberty takings compensation in the preventive detention world. If I'm right, the people who have the best claim are the SVPs or the mentally/criminally insane who are confined but not punished/blamed (anymore). Ironically, if I'm right, even acquitted (and even convicted) defendants who were detained would not have a strong moral claim to full compensation for pretrial detentions on a liberty takings model unless they could show that the detention was tortiously procured through misconduct on the part of the government. That said, even though these folks are not akin to innocent homeowners whose property is taken, they do have some claim to some compensation and incredibly better detention facilities than we currently extend to them. Indeed, home detention plus surveillance options are probably the closest reasonable approaches.

And perhaps most unorthodox is the claim that we should eliminate altogether the pervasive practice of giving credit for "time served" in jails for pretrial detention. Extending time-served only blurs the lines between preventive detention and punishment and makes the goverment less circumspect in their decisions about who they box and under what guise. Anyway, this is just a first pass attempt at making sense (to me) of these boxes and social functions, and I will be revisiting the literature (including the Kolber, Slobogin, Manns pieces among others) if and when I flesh out these views further. Tell me in the comments if I'm way off base (at least normatively, if not constitutionally), and if you think someone has already articulated these views more coherently so that I don't bother chasing rabbits down a preempted hole.

Monday, September 23, 2013

JOTWELL: Vladeck on Reagan on National Security Cases

The latest essay on JOTWELL's Courts Law is by our own Steve Vladeck, reviewing Robert Timorthy Reagan's National Security Case Studies, published by the Federal Judicial Center. Steve uses this compendium to show that Article III courts are capable of handling cases touching on national security, obviating the need for special national security courts.